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tween a creditor's bill as known in chancery deal with this issue may stand. Whether
and the relief afforded by R. L. c. 159, § 3, the portion of it which deals with this issue
cl. 8, which as pointed out in Powers v. Ray- should be treated as an auditor's report can
mond, 137 Mass. 483, combines in one suit in be determined only on motion therefor made
equity two essentially legal proceedings. in the Superior Court.
As was demonstrated by the illuminating So ordered.
judgment in Parker v. Simpson, 180 Mass.
334, 62 N. E. 401, the Constitution preserves

(215 Mass. 435)
the right of trial by jury as it was under-
stood and practiced at common law and CORBETT v. NEW YORK C. & H. R. R. CO.
therefore there is no constitutional right to (Supreme Judicial Court of Massachusetts.
such trial respecting matters cognizable un-

Suffolk. Sept. 11, 1913.) der the general principles of chancery. Nor 1. NEGLIGENCE (S_136*)-QUESTION FOR JURY does it exist as to rights gratuitously created -CONFLICTING EVIDENCE. by the legislature. Sawyer v. Common- Where the evidence is conflicting as to how wealth, 182 Mass. 245, 65 N. E. 52, 59 L. R. A. an accident occurred, the question is one of fact

. 726. Where the right to trial by jury has the [Ed. Note. For other cases, see Negligence, protection of the Constitution because con- Cent. Dig. $S 277–353; Dec. Dig. § 136.*] nected with an action at common law, a 2. RAILROADS ($ 275*)-INJURY TO LICENSEE. party cannot be deprived of that right be- The placing of a' freight car upon a decause a change in the form of procedure has livery track by a railroad company, and pointmade it cognizable in courts of equity. Pow-it, constituted a representation by the railroad ers v. Raymond, 137 Mass. 483; Merchants' company, upon which plaintiff was justified in Bank v. Moulton, 143 Mass. 543, 10 N. E. 251; acting, that the car was in a suitable place and Ginn v. Almy, 212 Mass. 486, 495, 99 N. E. invitation, for him to unload it, rendering the

condition to unload, and an assent, if not an 276. It follows that in the case at bar the railroad company liable for an injury to plaindefendants are entitled to trial by jury re- tiff by the car door falling on him when he atspecting the debt alleged to be due from tempted to open it to get at the contents. them to the plaintiff. They are not entitled Cent. Dig. $S 873–877; Dec. Dig. $ 275.*]

[Ed. Note. For other cases, see Railroads, to a trial by jury respecting the other 'branches of the case which relate to remedy


CONTRIBUTORY NEGLIGENCE QUESTION and which are purely equitable in their na- FOR JURY. ture.

Whether plaintiff, who was injured by the [5] It remains to inquire whether the de- falling of a car door while he was unloading

the car in defendant railroad company's yards, fendants have waived that right. The facts

was negligent in opening the door was a quesare that the answer was filed on February tion for the jury. 3d, 1910.

A motion for trial by jury was [Ed. Note. For other cases, see Railroads, filed on October 28, 1910. An amendment Cent. Dig. $8 910-923; Dec. Dig. & 282.*] to the bill of complaint was filed on January 4. RAILROADS (8275*)-INJURY TO LICENSEE 16th, 1911, and an answer to the bill of com

-DEGREE OF CARE. amended was filed on February signee of freight, was sent to the railroad yards

Where plaintiff, an employé of the con14th, 1911. A replication was filed on Feb- to unload a freight car, the railroad company ruary 20th and the claim for jury on Feb. was bound to exercise reasonable care to see ruary 28th of the same year. The parties unloaded, and its liability for an injury to plain

that the car was in a condition to be safely were not at issue as those words are used tiff did not depend upon whether it had a reain equity practice until the replication was sonable opportunity to inspect the car. filed. The claim for a jury trial was filed [Ed. Note.-For other cases, see Railroads, within the time allowed therefor under Su-Cent. Dig. $S 873-877; Dec. Dig. $ 275.*] perior Court Equity Rule 36. In a proceed. 5. RAILROADS (S_282*)—INJURY TO LICENSEE

-QUESTION FOR JURY. ing like the present which rightly is brought

Whether a railroad company, in an action under the statute on the equity side of the against it for an injury to plaintiff caused by a court, but which combines the establishment freight car door falling upon him while unloadof a right at common law with relief af- ing the car, exercised reasonable care to see forded in equity, we think it more convenient that the car was in a proper condition was a

question for the jury. and less confusing to hold that the procedure

[Ed. Note.-For other cases, see Railroads, for asserting the right to trial by jury should Cent. Dig. S8 910-923; Dec. Dig. § 282.*] follow the rules established in equity rather tban at common law. This is not one of the

Appeal from Superior Court, Suffolk Councases where the formal replication was not ty; Hugo A. Dubuque, Judge. filed and it is not necessary to determine

Action for personal injuries by Michael within what time the right to a jury must Corbett against the New York Central & be asserted in order to be preserved in such Hudson River Railroad Company. From a a case. See Stratton v. Hernon, 154 Mass. judgment in favor of plaintiff, defendant

An issue for a jury is 310, 28 N. E. 269.

brings exceptions. Overruled. to be framed in accordance with this opinion. G. L. Mayberry, of Boston, for defendant. So much of the master's report as does not | John J. Mansfield, of Boston, for plaintiff.


MORTON, J. This is an action of tort to invitation to him to unload it. And he was recover for injuries caused by the falling of left, so far as appears, as already observed, a car door upon the plaintiff as he was at- to break the seals and open and unload it in tempting to open it. The case is here on the his own way. It was for the jury to say defendant's exceptions.

whether, when he found, according to his The car was a Chicago & Great Western own testimony, that he could not open the Railroad Company car, and was loaded with door on the delivery side, he was required in wool which the plaintiff was sent by his em- the exercise of due care to notify the deployers, a firm of teamsters to unload and fendant, or seek assistance from it. It was deliver, "where it was going.” It was in the also for the jury to say whether, if they defendant's yard at East Boston known as found that the plaintiff opened the door with the Porter street yard, and stood upon a de an iron bar, that was under the circumlivery track so called. There was evidence stances a proper way to open it, and whether tending to show that a clerk in the defend the plaintiff used due care. There was ant's employ acting, as could be found, within evidence tending to show that it was somethe scope of his authority, and for the pur- times necessary to use an iron bar in opeupose of aiding the plaintiff in the unloading ing a car. The court instructed the jury in of the car, pointed out its location to the substance that if the door was not defective plaintiff. On one side of the car there was a and it fell because of the plaintiff's carelessspace for teams and the delivery of freight, ness in using an iron bar and in prying the but none on the other. The car had two door out of the groove or slide in which or on doors on opposite sides, both sealed. There which it ran, then the plaintiff could not rewas nothing to show that any directions were cover. The defendant in effect concedes that given or were expected to be given to the the fall of the door, if it occurred in the way plaintiff by the defendant in regard to un- in which the plaintiff testified that it did, loading the car, and, so far as appears, he would be evidence of negligence on the part was left to break the seals and open and of some one, but it contends that the only unload the car in his own way. The plaintiff duty which, under the circumstances, it owed drew up alongside the car with his team and to the plaintiff was that of proper inspection, tried to open the door, as he testified, but and that the falling of the door in the manwas unable to do so on account of the wool ner described by the plaintiff was not of itthat pressed against it. Thereupon he went self evidence of negligence by it in the perround to the other door, broke the seal, lifted formance of that duty, for the reason that it the latch or hasp, and was in the act of shov- did not appear how long the car had been in ing back the door when it fell upon him. the defendant's possession. But the plaintift This was in substance the plaintiff's account was not an employé of the defendant, and of the accident. The defendant introduced the defendant owed him no duty of inspection evidence tending to show that the door on as such. The relation which the plaintiff the delivery side was open, and that the occupied towards the defendant was that of plaintiff attempted to open the other door one coming to its premises on business which

for more ventilation; that the door was in involved the unloading of the car by him and in good condition; and that in opening it the in respect to whom the defendant was re

plaintiff used an iron bar and pried it up quired to exercise reasonable care to see that out of the groove in which it ran, and there the car was in a condition to be safely unby caused it to fall on him. This was denied loaded. It was for the jury to say whether by the plaintiff.

the defendant had exercised such care and [1-5] The question whether the accident whether the accident was due to its neglihappened as the plaintiff testified that it did, gence. It could not be ruled as matter of law or in the manner described by the defendant, that it was not, and by leaving it to the jury or in some other manner, was plainly one of to say whether the car had been there long fact for the jury. It could not be ruled as enough to allow the defendant to inspect it, matter of law that the plaintiff had no right the court ruled too favorably, if anything, to open the door for ventilation or for the for the defendant. Its liability did not depurpose for which he testified that he opened pend on whether it had or had not had a reait. The placing of the car upon a delivery sonable opportunity to inspect the car, but on track and the pointing out of its location by its failure to use reasonable care to see that the clerk to the plaintiff constituted, or could the car was in a condition to be safely unbe found to constitute, a representation by loaded by the plaintiff. the defendant on which the plaintiff was We discover nothing in the conduct of the justified in acting, that the car was in a suit- trial which requires that the exceptions able place and condition for him to unload, should be sustained. and an assent to his unloading it if not an Exceptions overruled.

(215 Mass. 493)

the full court on the pleadings and agreed BOSTON R. HOLDING CO. V. COMMON- facts. Petition dismissed. WEALTH.

Chas. F. Choate, Jr., Frank A. Farnham, (Supreme Judicial Court of Massachusetts. and L. R. Chamberlin, all of Boston, for Suffolk. Sept. 12, 1913.)

petitioner. James M. Swift, Atty. Gen., and 1. TAXATION ($ 376*)—CORPORATE FRANCHISES Andrew Marshall, Asst. Atty. Gen., for the -MODE OF COMPUTING.

Commonwealth. Under St. 1909, c. 490, pt. 3, § 41, providing that the tax commissioner shall ascertain the true market value of the shares of each cor- MORTON, J. This is a petition under St. poration subject to the franchise tax and from 1909, c. 490, pt. 3, § 70, and acts in amendthe shares constituting the capital stock which, ment thereof, for the abatement of a portion unless otherwise provided by its charter, shall of a franchise tax assessed upon the petibe taken as the true value of its corporate fran- tioner for the year 1912 and paid by it in chise, that from such value there shall be made October of that year. The case was reserved certain deductions, and under section 43, providing that every corporation, subject to such for the full court on the pleadings and tax, shall annually pay a tax upon its corporate agreed facts. franchises after making the deductions provided for in section 41, at a rate obtained as there- tion incorporated by St. 1909, c. 519, as

The petitioner is a Massachusetts corporain provided, that the tax upon the value of the

C. corporate franchise of a domestic business cor- amended by St. 1910, c. 639. By force of its poration, after making the deductions provided charter it is subject to the provisions of St. for in section 41, shall not exceed a tax levied 1909, c. 490, $$ 40, 41, 42 and 43, relating to at the specified rate upon an amount, less such the assessment and payment of taxes on the deductions, 20 per cent. in excess of the value as found by the commissioner, of the works, franchise of domestic business corporations. structures, real estate, machinery, underground The only property which it had at the time conduits, wires and pipes, merchandise, and se- of the assessment of the tax consisted of curities, which, if owned by a natural person resident in the commonwealth, would be liable to preferred and common stock in the Boston taxation, and that the tax shall amount to not & Maine Railroad and $21,794.81, "cash in less than one-tenth of 1 per cent. of the market bank.” The tax commissioner assessed the value of the capital stock, the 20 per cent. lim- tax. by determining the fair cash value of all itation does not come into operation in the case of a corporation which has no works, structures, the capital stock of the petitioner which, as real estate, etc., to which it can be applied, and provided in section 43, is to be taken as the in such case the valuation found, as provided true value of the corporate franchise, and in section 41 with the deductions therein authorized, if any, forms the basis of an assessment: which he found to be $28,804,958, and deductthe minimum tax, one-tenth of 1 per cent., not ing therefrom the value of the preferred and applying.

common stock of the Boston & Maine Rail[Ed. Note. For other cases, see Taxation, road, being "securities which, if owned, by Cent. Dig. $$ 625, 629-631; Dec. Dig. $ 376.*] a natural person resident” here, “would not 2. TAXATION (8 376*)-CORPORATE FRANCHISES be liable to taxation," which he found to -"MERCHANDISE”—“SECURITIES.

be $22,909,346, and multiplying the balance, Under St. 1909, c. 490, pt. 3, § 43, providing that the corporate franchise tax shall not ex- which he found to be $5,895,612, by the rate ceed a tax upon an amount 20 per cent. in ex- arrived at in the manner provided in said cess of the value of the works, etc., and merchan, section 43. The amount so determined was dise and securities which, if owned by a natural the tax paid by the petitioner. person resident in the commonwealth, would be liable to taxation, cash on deposit in a national

The petitioner contends that the maximum bank or trust company, as distinguished from a tax for which a corporation is liable under savings bank, is not "merchandise,” since it is not the statutes is a tax “upon an amount bank bills or specie, even if those might be called

* twenty per cent. in excess of the merchandise, nor is it included in the term "securities," which, in its ordinary acceptation in- value, as found by the tax commissioner of cludes bonds, certificates of stock or of deposit, the works, structures, real estate, machinery, notes, bills of exchange, and other evidences of in- underground conduits, wires and pipes, and debtedness or of property, but not mere choses in action; a deposit book in which sums deposited merchandise, and of securities which if ownin such a bank are set down being more in the ed by a natural person resident in this comnature of a memorandum than an evidence of in- monwealth would be liable to taxation” (secdebtedness, especially in view of part 1, section tion 43), and that this provision not being 4 which, in declaring what constitutes personal estate for the purpose of taxation, couples to applicable to it because it has no such propgether “public stocks and securities” but classes erty, if the contention of the commonwealth by itself "money at interest" and "money."

that the “cash in bank” is not included with[Ed. Note. For other cases, see Taxation, in the description of "merchandise” or “seCent. Dig: S$ 625, 629-631; Dec. Dig. $ 376.*

curities" is correct, it follows that the tax For other definitions, see Words and Phrases, should have been assessed upon it at the vol. 7, pp. 6386–6388; vol. 8, p. 7796.]

minimum rate. Case Reserved from Supreme Judicial If this is not so, then it contends that Court, Suffolk County.

the “cash in bank” is included in "merchanProceedings for the abatement of a tax dise” or “securities,” and that the tax should by the Boston Railroad Holding Company have been assessed upon an amount twenty against the Commonwealth. Reserved for per cent. in excess of the “cash in bank.”

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The commonwealth concedes that if the "cash the tax that otherwise would be assessed, in bank” comes within the term "merchan- and comes into operation only when there (lise” or “securities” then the result contend- are works, structures, real estate, etc., to ed for by the petitioner follows. But it de- which it can be applied. The twenty per nies that it properly can be so included. cent. is purely arbitrary, like the minimum

We do not think that either contention of rate, and no doubt was adopted by the Legthe petitioner can be sustained.

islature because when added to the value of [1] What is to be taxed is the corporate the works, structures, real estate, machinery, franchise. In order to tax it, its value must etc., and merchandise and of securities liable first be determined. The statute accordingly to taxation, the amount so determined was provides a method for arriving at that, and deemed by it to be a reasonable compromise declares that when the value has been de- for the purpose of taxation in regard to the termined in the manner provided it shall be value of the franchise of domestic business taken as the true value of the franchise (sec- corporations. The petitioner is not what tion 41). The method provided is for the tax would ordinarily be understood as a business commissioner to ascertain from the returns corporation, but is expressly made subject so or otherwise the true market value of the far as the valuation and taxation of its franshares of the corporation and then to esti- chise is concerned to the same statutory promate therefrom the fair cash value of all visions. Those provisions apply to it so far the shares constituting the capital stock, and as its charter and the nature of its business the amount so determined is declared, as we and the kind of property belonging to and have said for the purposes of the statute to held by it admit, and the tax levied upon it. be the true value of the corporate franchise. must conform to those provisions so far as But obviously it would be unjust to include applicable. For the reasons stated we are of 'in such valuation for the purposes of taxa- opinion that the tax complained of was asa tion property belonging to the corporation sessed in conformity with such provisions. in this or another state or country which was

The questions now presented were not besubject to local taxation. To do so would fore the court in New England & Savannah S. be in effect to cause double taxation. It also s. Co. v. Commonwealth, 195 Mass. 385, 81 N. would be unjust to include securities which, E. 286, 11 Ann. Cas. 678, and in American if owned by a natural person resident here Glue Co. v. Commonwealth, 195 Mass. 528, 81 would not be liable to taxation. For to do N. E. 302, 122 Am. St. Rep. 268. See Farr so would be to indirectly subject such secu- Alpaca Co. v. Commonwealth, 212 Mass. 156, rities to taxation. Real estate and machin. 98 N. E. 1078. It is possible that the conery subject to local taxation never have been struction which we have given to the statincluded in the valuation of the franchise since the tax was instituted. For a collec

ute might lead to results which could not

have been contemplated by the Legislature. Commonwealth, 212 Mass. 156, 98 N. E. 1078. But if so, that is a matter for the LegislaHence it is provided in section 41, par.

ture to remedy, and not for us. “Third," as amended by St. 1910, c. 270, that

[2] The petitioner further contends that “in case of a domestic business corporation, the "cash in bank” is included in the term

"merchandise" or the term "securities," and the value of the works, structures, real es: tate, machinery, poles, underground conduits, that the tax should have been assessed upon wires and pipes owned by it



an amount twenty per cent. in excess of

that. ject to local taxation, and of securities which if owned by a natural person resident in this

It is plain, we think, that it was not “mercommonwealth would not be liable to taxa- chåndise.” It does not come within any of

Boution; also the value of its property situated the accepted definitions of that word. in another state or country and subject to vier's Law Dictionary; 20 Am. & Eng. Encyc. taxation therein,” shall be deducted from of Law (2d Ed.) 580; Century Dictionary; the value of the franchise. Manifestly, how-Citizens' Bank v. Nantasket Steamboat Co., ever, there can be no deduction if the cor- 2 Story, 16, 53, 54, Fed. Cas. No. 2,730. It poration has no property of the kinds enu- was not bank bills or specie, even if those merated to be deducted, and the value of the might under some circumstances be called franchise must remain as determined. It merchandise. is the valuation thus determined either with Neither do we think that it is included in or without deduction which forms the basis the term “securities.” It is not like money for the assessment. Section 43, which deals on deposit in a savings bank which is reprewith the imposition of the tax, begins by pro- sented by a book containing the contract beviding that “Every corporation (what corpora-tween the depositor and the bank which may tions are meant being defined] shall annually be fairly said to be a security. In its ordi. pay a tax upon its corporate franchise, after nary acceptation the word "securities” inmaking the deductions provided for in section cludes bonds, certificates of stock or of deforty-one, at a rate," etc. The thing to be posit, notes, bills of exchange and other evitaxed is the franchise at the valuation de- dences of indebtedness or of property, and termined unless abated by the deductions not mere choses in action (25 Am. & Eng. provided for. The twenty per cent. clause is, Encyc. of Law, 180; 35 Cyc. 1283, note 59); in effect, a limitation upon the amount of land it is to be noted that the statute, in de.

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claring what personal estate shall include the defendant company. The second is by for the purpose of taxation, couples together the father for loss of services, medical at“public stocks and securities,” but classes tendance and nursing. The accident happenby itself "money at interest” and “money." ed June 28, 1903, at about half past seven St. 1909, c. 490, § 4. The deposit book in o'clock in the evening on Dorchester avenue

$ which sums deposited in national bank or in Boston. The two actions were tried and trust company are set down (assuming that have been argued together. At the close of the petitioner had one, which does not ap- the evidence the court directed a verdict for pear) is more in the nature of a memoran- the defendant, and the case is here on excepdum between the depositor and depositary tions by the plaintiffs to that ruling. than of what is ordinarily understood as an We shall speak of the plaintiff in the first evidence of indebtedness. See 2 Morse on action as the plaintiff. Banks & Banking, SS 290, 291. The "cash [1] The uncontradicted evidence showed in bank” was for the purposes of taxation in that the plaintiff was playing tag with two the nature of money on hand rather than in boys, Joseph and John Murphy, children of the nature of a security. Gray V. Street a neighbor, in their back yard which adjoinCommissioners, 138 Mass. 414.

ed his own; that the plaintiff was chasing We think that the tax was rightly assess the Murphy boys and that John ran out of ed, and that the petition should be dismiss the yard and into and across the avenue, ed.

over to the sidewalk on the other side of the Petition dismissed with costs..

avenue, the plaintiff running after him; that

according to the plaintiff's testimony John, (215 Mass. 432)

after dodging between two men or around GODFREY v. BOSTON ELEVATED RY. CO. an electric pole, turned and ran back again, (two cases).

the plaintiff still running after him, and (Supreme Judicial Court of Massachusetts. that he (the plaintiff) heard some one shout Suffolk. Sept. 11, 1913.)

"Get out of the way," and looked up and 1. APPEAL AND ERROR ($ 320*)-STREET RAIL. saw the motorman and then was struck by

ROADS ($ 114*)-INJURY TO CHILD-CONTRIB- the car. The plaintiff testified that he did UTORY NEGLIGENCE-SUFFICIENCY OF EVI• not see any car and heard no gong or anyDENCE.

On Evidence in an action for an injury to a thing to indicate that a car was coming. boy six years old, run over by a street car while cross-examination he testified amongst other playing in the street, held to sustain a finding things as follows: “Q.

You were that the boy was guilty of contributory negli- running about as fast as you could when you gence.

[Ed. Note. For other cases, see Appeal and were going back, the same as you were when Error, Cent. Dig. $$ 1790–1794; Dec. Dig. s you were coming over? A. Yes, sir. Q. And 320;* Street Railroads, Cent. Dig. $8 239-250; you were not paying any attention to anyDec. Dig. § 114.*]

thing but John when you were going back, 2. CONSTITUTIONAL LAW (8 111*)—VESTED were you? A. No, sir. Q. And you didn't RIGHTS-REMEDIES.

St. 1912, c. 317, authorizing reports of cashear anything? A. No, sir. Q. But you did es to the Supreme Judicial Court by a justice not listen, did you? A. Yes, sir. Q. Listen? other than the one presiding at the trial, is not A. Yes, sir. Q. But you didn't hear anyunconstitutional, since it relates to a matter thing? A. No, sir. Q. And you didn't see of procedure or remedy, and does not affect vested rights.

anything? A. No." The plaintiff also testi[Ed. Note.-For other cases, see Constitutional fied that as he started to go back he heard Law, Cent. Dig. 88 267–269; Dec. Dig. 8 111.*] Joseph, who remained on the other side of

Report from Supreme Judicial Court, Suf. the avenue, shout “Hurry up.” The testifolk County.

mony of Joseph, who was called as a witness Actions for personal injury by Harola by the plaintiff, differed slightly from that Godfrey and by James Godfrey against the of the plaintiff. He testified that after the Boston Elevated Railway Company. Verdict plaintiff and John got over on to the sidewas directed in each case for the defendant walk on the opposite side of the avenue the and the cases reported to the Supreme Judi- plaintiff tagged John, and that John fell cial Court. Judgments directed on the ver- down and the plaintiff started and ran back dicts.

as fast as he could towards the witness, look

ing directly at him, and was struck by the Whipple, Sears & Ogden, Sherman L. Whip- car coming down the avenue; and that as ple, and Henry H. Bond, all of Boston, for the plaintiff started back he (the witness) plaintiffs. Ralph A. Stewart and Edmund S. shouted to him “Hurry up across or else he Kochersperger, both of Boston, for defend- shouted to him “Hurry up across or else he

would be it." ant.

Dorchester avenue is straight for a long MORTON, J. These are two actions of tort. distance from where the accident took place, The first is to recover damages to the plain- with a slight downward grade in the directiff, a minor six years and eight months old tion in which the car was coming. The at the time of the accident, for injuries caus- plaintiff was "a quick, bright, intelligent and ed by being run over by a car operated by active" child, and was well acquainted with

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